ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 6 September 2019 DOCKET NUMBER: AR20190001241 APPLICANT REQUESTS: reconsideration of his earlier request to upgrade his bad conduct discharge to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record). FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20070008931 on 13 December 2007. 2. The applicant states, in effect, he believes his bad conduct discharge should be upgraded because, at the time of his discharge, he was young and fresh out of high school; he asserts he is now much older and wiser. He acknowledges it was wrong for him to sell marijuana to a friend, but he points out he was not a dealer; he was just selling his friend some of what he personally owned. He notes he enlisted into the Army's delayed entry program while still in high school; he was dedicated to serving his country. He is now 53 years old and needs Department of Veterans Affairs (VA) benefits. He questions whether is it fair to be punished his whole life for one bad decision; he contends that people change and are able to learn from their mistakes. 3. The applicant's service records show: a. He enlisted into the Regular Army for a 3-year term on 4 December 1984; he was 19 years old. On completion of initial training, orders assigned him to Fort Ord, CA; he arrived on or about 2 May 1985. Effective 4 June 1985, his chain of command promoted him to private (PV2)/E-2. b. On 13 January 1986, he accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice (UCMJ) for wrongfully using marijuana; punishment included reduction to private (PV1)/E-1. c. On 2 April 1986, the applicant's Fort Ord commander initiated bar to reenlistment action against him, based on the above-cited NJP, and the commander's view the applicant was a problem Soldier and a disruptive influence. The commander further noted the applicant's chain of command had counseled him numerous time, but the applicant showed no desire to improve. The battalion commander subsequently approved the bar to reenlistment. d. On 2 July 1986, a special court-martial empowered to adjudge a bad conduct discharge convicted the applicant of UCMJ violations. (1) The court found the applicant guilty of the following: * Two specifications of willfully disobeying the order of a noncommissioned officer (NCO) and two specifications of using disrespectful language toward an NCO (respectively towards a staff sergeant and towards the applicant's first sergeant) * one specification of operating a motor vehicle while wrongfully possessing an alcoholic beverage (applicant was under 21 years of age) * one specification of reckless driving * one specification of wrongful distribution of 10.40 grams of marijuana (2) The court sentenced the applicant to confinement for 3 months, forfeiture of $426 per month for 3 months, and a bad conduct discharge. (3) On 24 October 1986, the court-martial convening approved the sentence and, except for the bad conduct discharge, ordered its execution. e. On 8 May 1987, the U.S. Army Court of Military Review affirmed the findings of guilt and the sentence. f. A special court-martial order, dated 10 September 1987, announced the completion of the appellate review and stated the findings and sentence had been affirmed; the order directed the execution of the applicant's bad conduct discharge. On 6 October 1987, the applicant was discharged accordingly. His DD Form 214 (Certificate of Release or Discharge from Active Duty) showed he completed 2 years, 7 months, and 19 days of his 3-year enlistment contract, with lost time from 2 July to 15 September 1986. He was awarded or authorized the Army Service Ribbon and two marksmanship qualification badges. g. On 24 May 2007, he petitioned the Army Discharge Review Board (ADRB), requesting an upgraded character of service; the Army Review Boards Agency (ARBA) advised the applicant via letter that his application's submission date had exceeded the statutory 15-year time limit. ARBA provided a DD Form 149 so he could apply to the ABCMR. h. On 11 June 2007, the applicant applied to the ABCMR for a discharge upgrade. (1) He stated his request was based on his desire to become eligible for VA benefits. He further argued a friend had set him up after the friend was "busted" by undercover narcotics agents. The applicant contended, in effect, he had nothing to do with the drugs that were found; they actually belonged to his friend. His friend had sought to reduce his own punishment by making the applicant a scapegoat. (2) On 13 December 2007, the Board denied his request after finding no evidence the applicant's discharge was unjust; in addition, the Board stated the applicant had failed to provide sufficient evidence to mitigate his bad conduct discharge. 4. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. By law, the Board is not permitted to set aside a conviction, but is only empowered to change the severity of the sentence imposed in the court-martial process. 5. The applicant requests this upgrade to become eligible for VA benefits. The ABCMR is not authorized to grant discharge upgrades solely to entitle an applicant for Veterans' benefits. However, in reaching its determination, the Board can consider the applicant's petition, his service record, and his statements in light of the published guidance on equity, injustice, or clemency. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records and published DoD guidance for consideration of discharge upgrade requests. The Board considered the applicant’s statement, his record of service, the frequency and nature of his misconduct, the findings of a special court- martial and the reason for his separation. The Board found insufficient evidence of in- service mitigation to overcome the misconduct and the applicant provided no evidence of post-service achievements or letters of reference in support of a clemency determination. Based on a preponderance of evidence, the Board determined that the character of service the applicant received upon separation was not in error or unjust. 2. After reviewing the application and all supporting documents, the Board found that relief was not warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X :X :X DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. ADMINISTRATIVE NOTE(S): Not Applicable REFERENCES: 1. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. With respect to courts-martial, and related administrative records pertaining to court-martial cases tried or reviewed under the UCMJ, action to correct any military record of the Secretary's Department may extend only to actions taken by reviewing authorities under the UCMJ or action on the sentence of a court- martial for purposes of clemency. The Secretary of the Army shall make such corrections by acting through boards of civilians within the executive part of the Army. 2. AR 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a (Honorable Discharge) stated an honorable discharge was separation with honor. Issuance of an honorable discharge certificate was appropriate when the quality of the Soldier's service generally met the standards of acceptable conduct and performance of duty, or was otherwise so meritorious that any other characterization would clearly be inappropriate. Where there were infractions of discipline, commanders were to consider the extent thereof, as well as the seriousness of the offense. An honorable discharge could be furnished when disqualifying entries in the Soldier's military record was outweighed by subsequent honest and faithful service over a greater period of time. It was the pattern of behavior, and not the isolated instance, which commanders should consider as the governing factor. b. Paragraph 3-7b (General Discharge) stated a general discharge was a separation from the Army under honorable conditions. When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Paragraph 3-11 (Bad Conduct Discharge). A Soldier were given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial. The appellate review had to have been completed and the affirmed sentence ordered duly executed. 3. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records (BCM/NRs) regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. BCM/NRs may grant clemency regardless of the type of court-martial. However, the guidance applies to more than clemency from a sentencing in a court- martial; it also applies to other corrections, including changes in a discharge, which may be warranted based on equity or relief from injustice. This guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority. In determining whether to grant relief on the basis of equity, injustice, or clemency grounds, BCM/NRs shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment. Changes to the narrative reason for discharge and/or an upgraded character of service granted solely on equity, injustice, or clemency grounds normally should not result in separation pay, retroactive promotions, and payment of past medical expenses or similar benefits that might have been received if the original discharge had been for the revised reason or had the upgraded service characterization. ABCMR Record of Proceedings (cont) AR20190001241 6 1